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cyberlaw:intermediaries_tm [2019/09/03 12:27]
nic
cyberlaw:intermediaries_tm [2019/09/03 12:44]
nic
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-# Intermediary Liability for Trade Mark Infringement+# Intermediary Liability for Trade Mark Infringement, passing off, and misleading and deceptive conduct
  
 Unlike the _Copyright Act 1968_ (Cth) and _Patents Acts 1990_ (Cth), the _Trade Marks Act_ 1995 (Cth) does not contain a provision which makes liable those who authorise others to infringe a trade mark. Should the _Trade Marks Act 1995_ (Cth) be amended to include an express statutory provision extending liability for infringement to those who authorise infringement of registered trade marks? Some agitation of the issues has been seen in UK and US courts. Unlike the _Copyright Act 1968_ (Cth) and _Patents Acts 1990_ (Cth), the _Trade Marks Act_ 1995 (Cth) does not contain a provision which makes liable those who authorise others to infringe a trade mark. Should the _Trade Marks Act 1995_ (Cth) be amended to include an express statutory provision extending liability for infringement to those who authorise infringement of registered trade marks? Some agitation of the issues has been seen in UK and US courts.
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 </​WRAP>​ </​WRAP>​
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 +## Liability for misleading keyword advertising
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 +Advertisers who use brands have sometimes been held liable for misleading and deceptive conduct, passing off, and trade mark infringement. For direct liability for keyword advertising,​ see: 
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 +* Veda Advantage Ltd v Malouf Group Enterprises Pty Ltd (2016) 241 FCR 161; facts plus trade mark infringement at 126-128; s18 ACL at 234 (who is the reasonable member); on what is a misleading misrepresentation 242-244 and [251]-[254].
 +* Australian Competition and Consumer Commission v Trading Post Australia Pty  (2011) 197 FCR 498 per Nicholas J Legal principles s31 – 38 FACTS in relation to Kloster Ford advertisement [85 88]; Analysis at [94] – [100] , only in relation to Representation A and B [118] – [130]. Note that these findings were not overturned on appeal. ​
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 +In _Google, Inc v ACCC_ (2013) [249 CLR 435](http://​www.austlii.edu.au/​au/​cases/​cth/​HCA/​2013/​1.html) the High Court held that Google was not liable when it created a system to enable third parties to create advertisements that were reproduced on Google’s search results pages. The High Court was clear in finding that Google did not ‘endorse’ advertisements submitted by third parties and published on its own web pages, on the basis that the content of the material was wholly determined by the  advertiser ​ and  published ​ automatically ​ by  Google. ​ Google ​ ‘did ​ not  itself engage in misleading or deceptive conduct, or endorse or adopt the representations which it displayed on behalf of advertisers’ (at [73] (French CJ, Crennan and Kiefel JJ)). Liability for misleading and deceptive conduct is strict, but requires actual wrongful conduct on the part of the defendant that is likely to mislead or deceive — there is no separate secondary head of liability. Whether Google knew that the content was misleading was irrelevant.
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 +For further reading, see: 
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 +* Vicki Huang, ‘Liability For ‘Invisible’ Use of Trade Marks on the Internet’ (2018) 28 Australian Intellectual Property Journal 51  ​
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 +* Kylie Pappalardo & Nicolas Suzor (2018) [The liability of Australian online intermediaries](https://​eprints.qut.edu.au/​116142/​). Sydney Law Review, 40(4), pp. 469-498. ​
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 +* On misleading statements in trade and commerce on Facebook: _Madden v Seafolly Pty Ltd_ [2014] FCAFC 30
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 +* On s18 ACL in relation to social media marketing / cyber influencers:​ Lynden Griggs and Aviva Freilich, '​Influencers,​ Instagurus, and Enablers: Using Accessorial Liability to Establish a Norm of Behaviour in Relation to Disguised Viral Marketing'​ (2017) 25 Australian Journal of Competition and Consumer Law 113 
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 +* Amanda Scardamaglia,​ ‘Misleading and Deceptive Conduct in Australia: Google Inc v Australian Competition and Consumer Commission [2013] HCA1’ (2013) 35(11) European Intellectual Property Review 707
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 +* Althaf Marsoof, ‘Serving the Goals of Trademark Owners Through the Australian Consumer Law: A Reflection on Google Inc v ACCC’, (2015) 23 Australian Journal of Competition and Consumer Law 244  ​
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 +* Amanda Scardamaglia and Angela Daly, ‘Google, Online Search and Consumer Confusion in Australia’ (2016) 42 International Journal of Law and Information Technology 203
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 +* Angela Daly and Amanda Scardamaglia,​ ‘Profiling the Australian Google Consumer: Implications of Search Engine Practices for Consumer Law and Policy’ (2017) 40 Journal of Consumer Policy 299. 
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  • cyberlaw/intermediaries_tm.txt
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